Lawyers Weigh In On Anwar S Unprecedented Immunity Claim

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Anwar Ibrahim’s unprecedented bid for immunity from civil lawsuits has sparked a debate over its constitutional basis, with several prominent lawyers expressing scepticism about whether the Federal Constitution grants such protection to sitting prime ministers.
The lawyers told Malaysiakini that such immunity predominantly does not apply to members of the government.
Lim Wei Jiet said that the case brought by Anwar is the first of such in the judiciary’s history.
“I think first and foremost, the concept that the prime minister of Malaysia has some form of legal immunity against civil suits or even criminal suits is something that the courts in Malaysia have not decided yet.
“In fact, the Federal Constitution only says that the Yang di-Pertuan Agong and state rulers have a certain degree of immunity. The Constitution does not bestow immunity to any other person, including the prime minister.
“So I am not sure on which basis the prime minister’s lawyers are framing these questions of law to the Federal Court, relying on Articles 39, 40 and 43 because those articles don’t talk about immunity. They talk about the powers of the executives and the cabinet in general,” Lim said.
8 constitutional questions
Free Malaysia Today reported that Anwar had last week filed an application with the High Court, requesting that eight constitutional questions be referred to the Federal Court, centred on whether he gets immunity from civil proceedings initiated by Yusoff Rawther, his former research assistant.
In 2021, Yusoff filed a civil action over the allegation that Anwar sexually assaulted him at the PKR president’s office in October 2018.
Yusoff Rawther, Anwar Ibrahim’s former research assistantThe report said that Anwar is seeking a definitive ruling from the apex court on whether Articles 39, 40, and 43 of the Federal Constitution provide him with qualified immunity against legal action brought by Yusoff four years ago.
The report stated that the civil suit concerns incidents that purportedly occurred before Anwar assumed office on Nov 24, 2022.
ADSNo basis in law
Litigation lawyer A Surendra Ananth, in his personal opinion, noted that there was no basis in law for the claim.
“The Constitutional provisions cited do not in any way grant any sort of immunity to the prime minister or any member of the executive. On the contrary, Article 8(1) states that all persons are equal before the law. This includes the prime minister.
“Further, Articles 5 and 8 also grant access to justice. As already decided by the Federal Court in the Tony Pua case, the prime minister can even be sued for misfeasance in public office.
⁠”Even when one speaks of immunity, it generally only covers acts done in an official capacity, which is not the case here,” Surendra said.
Pua, the then DAP publicity secretary and Petaling Jaya Utara MP, filed the suit in January 2017 against Najib and the then government, on the grounds that the now ex-prime minister had allegedly abused his public office and received monetary benefits from 1MDB.
American legal system
Lawyer Shafee Abdullah had, in a press conference earlier today, said that Anwar might be relying on the American legal system, which grants such immunity to its sitting president.
“One is to say that the trial cannot proceed until I am no longer the prime minister. Then you can begin again. The other alternative, he said, is you strike it out completely.
“So it is on that basis. My comment on that is simply this: Our system has never recognised that, but that is as much as I can say, because going beyond that, I am going into the merits of the case,” he told reporters.
He commented on the matter after speaking about contempt of court proceedings launched by his client Najib Abdul Razak, against former attorney-general Ahmad Terrirudin Salleh, over the latter’s action in 2024, where he declined to reveal in court the existence of a royal addendum ordering Najib to serve the remainder of his six-year jail term under house arrest.
“What Anwar is applying (for)… you must understand his application in the context in which it is applied. He said yes, the allegation against me was before I became prime minister.
Lawyer Shafee Abdullah“The so-called happening. The purported events that happened. He said, but that is not relevant. The relevance is when the trial is about to begin, when I am already the prime minister.
“This is an American concept where a sitting president cannot be bothered by proceedings about him that will go on during his presidency because that will severely disturb his administration’s work as a president,” Shafee said.
What Anwar is seeking
Through his recently engaged legal team at Messrs Zain Megat & Murad, it is understood that Anwar filed the application last week, asking the court to determine whether allowing the lawsuit to proceed would compromise his ability to effectively perform his executive responsibilities and breach the constitutional doctrine of separation of powers.
Additionally, Anwar is reportedly requesting the Federal Court to consider whether permitting the case to continue would violate his constitutional right to equal treatment under Article 8(1), particularly given his assertion that the proceedings represent an abuse of the legal process.
FMT reported Anwar characterising the lawsuit as being founded on a “manufactured claim” and described himself as the target of “politically motivated reputational sabotage”.
Additionally, he is seeking a Federal Court determination that the High Court must conduct a “threshold inquiry” to establish whether the suit amounts to process abuse or poses a threat to the public interest, and if established, whether proceedings should be halted or dismissed to preserve constitutional governance.
The application additionally requests clarification on whether Anwar, in his capacity as the prime minister, is entitled under Article 5(1) of the Federal Constitution to “protection from a vexatious litigant” who brings lawsuits that are tactically scheduled or politically orchestrated to compromise his governance capacity.
The reference is being pursued under Article 128(2) of the Federal Constitution.
Anwar also reportedly contended that the trial before judge Roz Mawar Rozain should be suspended while the apex court considers the matter.
Anwar’s lawyer Megat Abdul Munir Megat Abdullah Rafaie said the questions presented satisfy the referral criteria established in Section 84 of the Courts of Judicature Act 1964.
All equal under law
As for Lawyers for Liberty’s executive director Zaid Malek, he was of the view that any litigant already has a right to apply to strike out a civil suit if it is vexatious, and the courts would readily hear such applications and decide accordingly based on established legal principles.
“A threshold inquiry is unnecessary. Whether or not a defendant is a member of the executive has no bearing on this argument, and any attempt to do so would be a violation of equality principles under Article 8. Whether the allegations pre-date or not is irrelevant.
“The provisions cited have no bearing on any claim of qualified immunity or any kind of immunity for the prime minister, and in fact, no such concept exists within our Constitution.
“The prime minister is not the head of state, that is the role of the Yang di-Pertuan Agong,” he added.
No express provision
Like Shafee, lawyer Nizam Bashir concurred that the qualified immunity doctrine is a legal principle in the US, which was first introduced by the US Supreme Court in the case of Pierson vs Ray in 1967.
In this case, the Supreme Court affirmed that a local judge had absolute immunity from lawsuits for actions taken within the scope of his or her judicial role. The court also ruled police officers had qualified immunity.
However, Nizam said that in 1997, in the Clinton vs Jones case, the US Supreme Court ruled that a sitting president is not immune from civil lawsuits for actions taken prior to their presidency.
“As a matter of observation, thus far in Malaysia, most claims for immunity have been articulated in a statutory sense and reasonably so as, save for the Yang di-Pertuan Agong [Articles 32(1) and 183] and judicial commissioners (Article 122AB), there is no express provision for immunity in the Federal Constitution,” he explained.
“There are a number of things that the court would look at when determining if a party is a vexatious litigant; for instance habitually and persistently instituted legal proceedings, the claims are frivolous, vexatious or totally without merit, the litigant’s conduct amounts to an abuse of the court’s process and unless restrained the litigant will continue to file further meritless claims or applications,” Nizam added.
Lawyer Firdaus Husni said that legislative or parliamentary immunity refers to a mechanism where politicians are granted immunity from legal prosecution, either civil or criminal prosecution, in the course of carrying out their official duties.
The human rights advocate pointed to Article 63 of the Federal Constitution, which provides for immunity from civil or criminal liability for statements made during parliamentary proceedings.
“It does not appear that Articles 39, 40 and 43 provide some form of qualified immunity, unless the context falls under Article 63 situations,” the former CEO of the Malaysian Centre for Constitutionalism and Human Rights (MCCHR) said.
“Article 8 guarantees that all persons are equal before the law and are entitled to equal protection of the law. This includes prime ministers too, as no one should be above the law, unless the law expressly departs from this guarantee for a specific purpose.
“It must be made clear that the provision of legal immunity exists to protect parliamentarians in the course of carrying out their function in Parliament so as to ensure they are able to do their job properly,” she said, adding that this does not apply to allegations of events before their time in office. - Mkini

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